Bachan Singh vs State of Punjab

K.K. Srivastava, J.

Bachan Singh has been tried on a charge under Sections 4/5 of the Explosive Substance Act, 1908 (hereinafter referred to as ''the Act'') in the Court of Additional Sessions Judge, Ludhiana, who has convicted him under the said charge and sentenced him to suffer rigorous imprisonment for four years and to pay a fine of Rs. 500/ and in default of payment of payment of fine, to further undergo rigorous imprisonment for three months. Feeling aggrieved against his conviction and sentence, as aforesaid, this appeal has been filed by Bachan Singh.

The case of the prosecution, briefly stated, is that or July 19, 1985, Sub Inspector Jai Singh accompanied by Assistant Sub Inspector Harbhajan Singh and other police officials including Head Constable Surjit Singh (P.W. 2) and Constable Surat Singh (P.W. 3) were present in Village Sihan Daud in connection with the investigation of a case under the Arms Act when they received an information through some informer about the appellant concealing hand grenades. Acting upon this information, the police party led by Assistant Sub Inspector Harbhajan Singh raided the house of the appellant and found the appellant present at his house. Assistant Sub Inspector Harbhajan Singh interrogated the appellant, who suffered a disclosure statement (Exhibit P.B.) and offered to recover two handgrenades from his premises and thereby led the police party to his courtyard (cattle shed) and got recovered two handgrenades from under the earth wrapped in a glazed paper near the heap of cow dung cakes. Recovery memo (Exhibit P.C.) was prepared (sic). One Jit Singh a witness of public, who also witnessed the interrogation of the appellant and the recovery consequent upon the disclosure statement, was given up by the prosecution.

The appellant denied the recovery of handgrenades in his statement recorded under Section 313, Criminal Procedure Code and he contended inter alia that he had been implicated falsely in this case at the instance of one Sucha Singh, who had a civil litigation pending in the shape of a civil appeal before the Additional District Judge, Ludhiana, against Waryam Singh, father of the accusedappellant.

The learned counsel for the appellant contends that the recovered articles are, as a matter of fact, not explosive substances. He has also challenged the prosecution evidence regarding the recovery of two handgrenades and has contended that the recovery was shown from a place which is not in exclusive possession of the appellant. He has further contended that no proper sanction for prosecution of the appellant was obtained under Section 7 of the Act because the sanction was not accorded by the Central Government as required by Section 7 of the Act. He has further contended that there is no independent witness examined to corroborate the evidence of the official witnesses (police witnesses). He has further contended that the evidence of the police witnesses, namely, Head Constable Surjit Singh (P.W.2) and Constable Surat Singh (P.W. 3) are full of contradictions and are discrepant. It was contended that, as a matter of fact, the accused was implicated in this case falsely at the instance of Sucha Singh, who had a score to settle with him because of the civil litigation, mentioned above. Lastly, the submission was that the sentence awarded by the learned trial Court was excessive. These were the submissions which were made by the learned counsel for the appellant in this appeal. I will deal with these submissions as under :

So far as the recovery of two handgrenades is concerned, the evidence of the prosecution witnesses, Head Constable Surjit Singh (P.W. 2) and Constable Surat Singh (P.W. 3) categorically goes to show that the accusedappellant, after suffering the disclosure statement led the police party to the courtyard/cattle shed and got two handgrenades recovered from under the earth which were wrapped in a glazed paper placed near the cow dung cakes. The witness Head Constable Surjit Singh (P.W. 2) was crossexamined on behalf of the appellant and he stated in his crossexamination in categorical terms that Bachan Singh accused was inside his house when he reached there. The place of recovery was not accessible to all as it had a gate and lock. The accused opened the gate and the lock in their presence and the key of the lock was with the accused at that time. This statement leaves no room for doubt that the place of recovery was exclusively in possession of the appellant, who was having the key of the lock put on the gate of the premises. Therefore, there is no substance in the contention that the recovery was made from a place which was not in exclusive possession of the appellant.

Now, coming to the submission regarding the recovered articles being not explosive substances, the statement of M. Prakash, Controller of Explosives, Chandigarh (P.W. 4) would go to show that after examining the two articles received in the sealed parcels which contained round objects of about 5 cm in diameter fitted with a short length of coloured cord having markings

GREN90MK3

LOT37

OC872

the same were found to be practice handgrenades No. 90MK3 of service origin fitted with the small length of safety fuse, which were nonlethal simulators initiated by safety fuse and were used by military personnel to simulate the bursting sound of a standard handgrenade containing high explosives. The said practice handgrenades were unauthorised explosives for civil use vide Rule 3 of Explosives Rules, 1983. The definition of explosive substances as contained in Section 2 of the Act shows that the expression "explosive substance" shall be deemed to include any materials for making any explosive substance; also any apparatus, machine, implement or material used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance, also any part of any such apparatus, machine or implement. The definition of "explosive substance" together with the statement of M. Prakash (P.W. 4) categorically proves that the two articles recovered were explosive substances. This submission of the learned counsel for the appellant has also no force.

Now, coming to the submission regarding the sanction for the prosecution of the appellant under Section 7 of the Act, it will be sufficient to refer to the sanction order of the District Magistrate which is Exhibit P.A. It specifically provides that the functions of the Central Government under Section 7 of the Act, have under Government of India, Ministry of Home Affairs Notification No. SO135923/9/76 GPAV dated 20th April, 1977, been conferred upon all the District Magistrates. The District Magistrate has, thus, exercised the powers conferred on him by the Central Government to act under Section 7 of the Act and, therefore, by virtue of this delegation of powers, the order of sanction under Section 7 of the Act shall be deemed to be the sanction accorded by the Central Government. In view of this fact, the sanction accorded by the District Magistrate cannot be said to be legally defective or invalid. On the other hand, the District Magistrate has exercised his authority/jurisdiction to accord sanction on behalf of the Central Government under entrustment of powers by the Central Government vide notification referred to above.

So far as the next contention of the learned counsel regarding non examination of independent witness in this case is concerned, it may be mentioned that there is no rule of law making it obligatory for the prosecution to examine witnesses of public as independent witnesses to corroborate the statements of the police witnesses. The statements of the police witnesses cannot be discarded merely because they are the police officials. There is no blanket bar upon the reliance and credibility of the witnesses belonging to the police department. The Evidence Act does not lay down about any number of witnesses needed for proving a particular fact. In the instant case, the prosecution has examined two witnesses, namely, Head Constable Surjit Singh (P.W. 2) and constable Surat Singh (P.W. 3) regarding the interrogation of the accused during which he suffered disclosure statement leading to the recovery of two handgrenades and these witnesses have corroborated the prosecution case regarding the recovery of two handgrenades. I have been taken through the statements of these two witnesses by the learned counsel for the appellant and I do not find any material and substantial contradiction in their statements from which it may be said that they are discrepant and not reliable. There was only one witness of public namely Jit Singh, but he was not examined. Under these circumstances, the statements of the aforesaid police witnesses are worthy of reliance and have rightly been believed so by the learned trial Court. I do not find any such material in their statements which may render them unreliable.

So far as the defence plea is concerned, the same has no connection whatsoever with the police to implicate the appellant falsely in this case at the instance of Sucha Singh. Sucha Singh had some civil litigation pending with Waryam Singh, the father of the appellant, and that could not be said to be responsible directly for the involvement of the appellant in this case. The defence version is sought to be proved by examining two witnesses, namely, Sadhu Singh, Panch (D.W.1) and Darshan Singh, Ahlmad in the Court of Additional District Judge, Ludhiana (D.W.2). Darshan Singh (D.W.2) is a formal witness proving the pendency of a civil appeal between Sucha Singh and Waryam Singh in the Court of Additional District Judge, Ludhiana. Sadhu Singh (D.W.1) has given a negative evidence in the sense he has stated that no such recovery took place in his village from the premises of the appellant. The statement of Sadhu Singh is not reliable and, at any rate, the sworn testimony of the prosecution witnesses cannot be held to be unreliable because of the statement of a negative character given by Sadhu Singh, Panch. Sadhu Singh is an ExSarpanch of the village. He has stated in crossexamination that no resolution was passed in the Panchayat regarding the illegal arrest accused and no complaint was made to the higher authorities by him or other persons. He could not tell the exact date and month when the accused was arrested by the police. He did not know the full name of the assistant Sub Inspector. The witness Sadhu Singh is a partisan witness belonging to the same village and his evidence is of no consequence so far as the defence version is concerned.

In view of the foregoing discussion, the prosecution evidence clearly and categorically proves beyond shadow of reasonable doubt that the appellant was found in an unauthorised and illegal possession of two handgrenades which are, no doubt, explosive substances, So far as the offence committed by the appellant is concerned, it may be mentioned that Section 4 of the Act which provides as under :

"Punishment for attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property. Any person who unlawfully and maliciously

(a) does any act with intent to cause by an explosive substance, or conspires to cause by an explosive substance, an explosion in India of a nature likely to endanger life or to cause serious injury to property; or

(b) makes or has in his possession or under his control any explosive substance with intent by means thereof to endanger life, or cause serious injury to property in India, or to enable any other person by means thereof to endanger life or cause serious injury to property in India;

shall, whether any explosion does or does not take place and whether any injury to person or property has been actually caused or not, be punished with transportation for a term which may extend to twenty years, to which fine may be added, or with imprisonment for a term which may extend to seven years, to which fine may be added."

has no application in this case for the obvious reason that these explosive substances i.e. handgrenades were found to be explosive substances with nonlethal simulators and incapable of endangering the life or property. The case is, however, squarely covered under Section 5 of the Act which provides as under :

"Punishment for making or possessing explosives under suspicious circumstances. Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be punishable with transportation for a term which may extend to fourteen years, to which fine may be added, or with imprisonment for a term which may extend to five years, to which fine may be added."

The learned trial Court has convicted the accused under Sections 4/5 of the Act. The conviction of the appellant, under the facts and circumstances of the case, deserves to be maintained under Section 5 of the Act. So far as the sentence is concerned, the appellant, as informed by the learned counsel for the appellant, had been in jail for two months as an undertrial and for a period of one month after his conviction. Looking to the fact that the appellant was convicted in October, 1986, and in the facts and circumstances of the case, the interest of justice would adequately be served if the sentence of four years'' rigorous imprisonment is reduced to one year''s rigorous imprisonment. So far as the sentence of fine and sentence in default is concerned, the same. deserves to be maintained. Consequently, the appeal is partly allowed. The conviction of the appellant is maintained under Section 5 of the Act and sentence of four years'' rigorous imprisonment is reduced to one year''s rigorous imprisonment. The sentence of fine of Rs. 500/ and in default of payment of fine the sentence of three months'' rigorous imprisonment is also maintained.